Pennsylvania's Erosion of the Fair Share Act in Products Liability Cases | The Legal Intelligencer – Law.com

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COMMENTARY
This article will explain how Roverano’s reliance on Azzarello-era precedent to reinstate per capita apportionment among strict liability defendants opens the door to a Tincher-based challenge to Pennsylvania’s method of apportionment.
January 16, 2022 at 01:56 PM
8 minute read
Products Liability
Pennsylvania’s Fair Share Act (FSA), 42 Pa. C.S. Section 7102, was enacted in 2011 with the twin aims of ensuring that defendants were only required to pay their fair share of any damages awarded in multi-defendant litigation and curtailing joint and several liability. In Roverano v. John Crane, 226 A.3d 526 (Pa. 2020), however, the Pennsylvania Supreme Court began eroding the protection afforded by the FSA, holding that liability must be apportioned among strict liability defendants on a per capita basis. Following Roverano, the Pennsylvania Superior Court threatened to gut the FSA’s protections by suggesting in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. Ct. 2021) that the FSA only applies if a plaintiff has been apportioned a degree of comparative fault. Taken together, these two decisions set the stage for a re-imposition of the per capita apportionment and joint and several liability schemes that the FSA was enacted to limit.
This article will explain how Roverano’s reliance on Azzarello-era precedent to reinstate per capita apportionment among strict liability defendants opens the door to a Tincher-based challenge to Pennsylvania’s method of apportionment. It will also examine whether the Pennsylvania Superior Court’s analysis of the FSA in Spencer suggests that the FSA will be found inapplicable to strict liability defendants.

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